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S.Chandrasekar filed a consumer case on 21 Oct 2022 against The Manager, GIC Housing Finance Ltd., in the Ariyalur Consumer Court. The case no is RBT/CC/58/2022 and the judgment uploaded on 21 Mar 2023.
Date of Filing: 28/04/2017.
Date of Order: 21/10/2022.
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
ARIYALUR
PRESENT : THIRU. V. RAMARAJ M.L., PhD., PRESIDENT
: THIRU. N. BALU B.A., B.L., MEMBER I
: TMT. V.LAVANYA B.A.B.L., MEMBER II
C.C.(RBT) NO. 58/2022.
FRIDAY THE 21st DAY OF OCTOBER 2022.
1. S.Chandrasekar
S/o K.Srinivasan
No.70, Third Cross Street,
NGO Colony,
Chennai – 600 088. – Complainant
//versus//
1. The Manager
GIC Housing Finance Limited
2nd Floor, Khivraj Complex-2,
Plot No. 480, Anna Salai,
Opposite to Nandanam Arts College,
Nandanam,
Chennai – 600 035.
2. R.R.P. Housing Private Limited
Represented by its Managing Director
Mr. Padmanaban
S/o of Natraja Pillai
3. Mr. N.Padmanaban
S/o Nataraja Pillai
Managing Director
4. Mr. P.Tamil
S/o Mr. N.Padmanaban
2-4 having office at
No.12/6, Achudhan Nagar, First Street,
Poonamalee Road, Ekattuthangal
Chennai- 600 032. Opposite Parties
Counsel for the Complainant:- M/s M.JAIKUMAR
M.MAGESHWARAIHA
Counsel for the 1st Opposite
Party : - M/s.V.RAMESHVEL
M.SARAVANA SELVAM
Counsel for the 2nd to 4th
Opposite Parties : - M/s C.Karthik
B. Suresh Lal
This Complaint having come for final hearing before us on 14/10/2022, and upon Perusing the Written arguments, Proof Affidavits and Documents filed by the complainant and Opposite Party 1, and written version of Opposite Party 2 to 4 this Commission passed the Following :-
ORDER
PRONOUNCED BY Tmt. V.LAVANYA B.A,B.L., MEMBER II
ADOPTED BY Dr.V.RAMARAJ M.L.,Ph.D., PRESIDENT & Mr. N.BALU B.A,B.L. MEMBER I.
1. The Complaint was filed U/S 12 of the Consumer Protection Act, 1986, to direct the 1ST Opposite Party to cancel the loan agreement bearing form No. 513455 and to return the EMI amount of Rs. 1,60,329/- paid to the 1st opposite party and Rs.3,65,000/- advance paid to the 2nd to 4th Opposite Party; to Pay a Consolidated damages of Rs. 10,00,000/-to the complainant for the deficiency of Service, for the financial loss suffered by the complainant and for the mental stress and agony ; pass such other suitable orders and further reliefs.
2. The Brief Averments of the Complaint is as follows:-
a. The Complainant submits that on seeing the advertisement issued by the 2nd to 4th Opposite Parties in respect of construction of low budget Villas in the proposed layout visited the Project site to verify the authentication of the project in order to book for him. The layout was in the Name of Amudham Homes at no.105, Nungambakkam Village, Thiruvallur District.
b. The Complainant submits that when he visited the construction site met the 2nd to 4th Opposite Parties and they introduced the 1st Opposite Party and briefed about the Loan and project approval. Since the 1st Opposite Party and 2nd 3rd Opposite parties were in mutual contract and understanding it was easier for the complainant to avail loan at the earliest hence the entire construction corporation formalities were subject to easier approval.
c. Therefore the Complainant based on the assurance of the 1st opposite party applied for Loan amount of Rs. 11,00,000/- and agreed to Purchase one of the Villas at the proposed construction in Amudham Home from 2nd to 4th Opposite parties i.e., the builders, and paid part consideration amount of Rs. 1,00,000/- by way of cheque as advance amount.
d. The Complainant entered construction agreement dated 01.09.2014 with the 2nd to 4th Opposite Party for the purchase of Villa at phase II, Block A Plot No.23. As per the agreement the Builders had assured to handover the Villas within 12 months with grace Period of three Months. The 1st Opposite Party assured the Complainant that the loan amount would be sanctioned in Phase manner and the amount will be disbursed by stage by stage to the 2nd Opposite party (RRP) based on the Construction.
e. The Complainant submits that the Villa was not handed over by the 2nd to 4th Opposite Parties as promised before January 2016, on the other hand the complainant came to know that the Builders have no clear title and obtaining plan approval was not done. The authorities issued stop work notice and placed warning board at the Project site. Hence the complainant and several purchasers lodged a complaint against all the Opposite Parties for cheating and criminal breach of Trust before the Inspector of Police, District Crime Branch, and Thiruvallur.
f. It is submitted that the 1st opposite Party in collusion with the 2nd to 4th Opposite Parties knowing that the villa had no title approval from the concerned authorities has conspired and fraudently induced the Complainant to Purchase the Proposed Villa through 1st Opposite Party finance Company. Knowing that only 40% of completion of the villa the 1st opposite party had disbursed the entire Loan amount in favor of the 2nd to 4th opposite Parties. Even though it was assured that the amount will be released in Phase manner based on the completion of construction. This shows the intention of the 1st opposite party to make wrongful gain and criminal breach of Trust.
g. In spite of all the misrepresentations the 2nd to 4th Opposite parties sent photos to the complainant through mail the completed construction of villa in order to get the balance amount to be released from the 1st opposite party who in turn received visitation charges to release the Loan Amount , though the complainant had instructed the 1st Opposite party not to release the balance amount but the 1st Opposite acted in a fraudulent manner by colluding with the 2nd and 3rd Opposite parties for gain .
h. Therefore the acts of the Opposite Parties are the act of Misrepresentations and unfair Trade Practice. It is indeed that the 1st Opposite Party’s agents are threatening the complainant to take legal actions if he did not pay the ECS/EMI and threatening to include the name of the Complainant as defaulter in CIBIL List.
i It is submitted that the 2nd to 4th Opposite Parties has constructed only 40% of the Construction and they have breached the agreement by not handing over villa in time, which has caused lots of financial constrained to the complainant. The Complainant in one hand has availed loan from 1st Opposite Party who have given the respective amount of Rs. 3,65,000/- and monthly EMI of Rs.1,60,329/- to the 2nd and 4th Opposite Parties, on the other hand the complainant has been paying monthly rent for his present house. Therefore the Complainant issued a legal Notice to the opposite Parties on 20.09.2016. The Opposite parties failed to reply to the said notice. Hence the complaint is constrained to file the complaint against the Opposite parties for Deficiency of Service, Mental Stress and Agony.
3. Brief averment of the 1st Opposite party;-
a. The 1st opposite party denies all the allegations stated by the complainant in his complaint. At the outset the 1st opposite party states that the complainant approached the 1st Opposite Party for financial assistance of housing loan for the purchase of villa at phase II, block a plot no.23 in the project of the 2nd opposite party. Being satisfied with the prevailing rates of interest and release of payment schedule submitted his housing loan application on 28/03/2015 with the title documents and relevant documents of agreement with the 2nd Opposite Party. The loan amount of Rs.11, 00,000/-p was sanctioned on 08/04/2015 which includes Kotak Life Insurance amount of Rs.34, 103/-.
b. On 09/04/2015 based on the requisition letter given by the Complainant for disbursement of 1st Installment of Rs. 5,00,000/- to the 2nd opposite Party along with Kotak Life Insurance as a Premium was disbursed. On 17/06/2015 a demand letter was issued by the 2nd Opposite Party to release the payment of Rs.5, 00,000/- as the villa building was raised to the roof level stage, following the demand letter the complaint on 23/7/2015 issued a letter of requisition for disbursement of 2nd installment of Rs.5, 00,000/- to the 2nd Opposite party after site verification.
c. This Opposite party after scrutinizing the title deeds and other revenue documents through their panel of advocates ,sanctioned the housing loan to the complainant and the 1st Opposite party is in no way concerned with the delay in handing over the Villa to the complainant by the 2nd opposite party. Delay in handing over of the Possession of Villa will not attribute deficiency of service or unfair trade practice on the 1st opposite Party. Any violation in construction the 2nd opposite party is alone responsible and the complainant has no right to stop payment of EMI’s to the 1st opposite party and it is the duty to repay the loan amount.
d. The 1st opposite party denies the allegations which are concocted false and invented story which are created for filing this complaint. The 1st opposite party is only a financial institution concerned with lending housing loans to the persons.
e. For any violations in the constructions of building the complainant is responsible as he has entered an agreement with the 2nd opposite parties, being satisfied with the approval documents the complainant entered the agreement now he cannot shift the burden on the 1st opposite party without any authority.
f. The 1st Opposite Party disbursed the amounts to the 2nd opposite Party based on the written requisition by the complainant only. The 1st opposite party has not committed any act of cheating or criminal breach of trust and has not enriched any wrongful gain.
g. In fact the complainant in conspiracy with the 2nd Opposite party knowing very well there is violation in the building approval plan and without completion of the flat, in collusion with the 2nd Opposite party has issued a letter of requisition to release a payment and cheated this opposite party with malafide intention the complainant has not paid the EMI as agreed upon and committed willful default. The total outstanding loan amount is Rs. 11, 25,759/-.
h. It is submitted that during the site visit by the officials of the 1st opposite Party the structure was completed and the complainant never instructed the 1st Opposite Party not to release the further loan amount to the 2nd Opposite Party.. Hence in collusion with the Opposite parties 2 to 4 the complainant has approached the 1st Opposite party and obtained a loan of Rs.11,00,000/-. The 1st Opposite has fully disbursed the Loan amount to the 2nd opposite party on the request of complainant.
I. The complainant In order to cheat the financial institutions has committed default in the repayment of the loan amount and filed this complaint with false allegations to deprive the valuable rights of this opposite party from recovering the loan amount and its dues. The 1 st opposite party states that there is no iota of truth in the entire complaint and the complaint is liable to be dismissed.
4. Brief averments of the 2nd to 4th opposite parties.
a. The Opposite Parties had entered into an agreement with the complainant on 1/09/2014. This opposite parties has raised the issue of Maintainability of the above complaint. As per the clause no.47 of the construction Agreement dated 1/09/2014, only Arbitrator have to be appointed to deal with this issue as it is in accordance with Arbitration and conciliation Act, 1996.The Complaint filed against this Opposite parties in pursuance of the Purchase of the Villa at “Amudham Homes Project” is false and there is no deficiency in rendering service. This Opposite party never canvassed the Complainant to approach the 1st Opposite party for housing loan as alleged by the complainant in complaint. It was the Complainant who approached the 1st opposite party, learnt the terms conditions of the Housing loan and agreed to purchase one Villa from the opposite Party.
b. The 2nd to 4th Opposite parties denies the statement that the complainant had paid a sum of Rs. 3, 65,000/- to this Opposite Parties. The complainant had agreed to to purchase the vacant land of 720 sq ft for a total consideration of Rs. 2,88,000/- and had paid only sum of Rs. 1,00,000/- as advance by way of cheque and agreed to pay the balance sum of Rs.1,88,000/- before the day of execution of the sale deed. But the complainant failed to pay the balance amount therefore the sale deed was not executed by this opposite party in favor of complainant.
d. The Opposite Party states that the Complainant approached various banks for loan and finally satisfied with the 1st opposite party financial status and disbursement of payment procedures, availed housing loan with the help of 2nd to 4th opposite parties, according to the Annexure B of the construction agreement. It was decided that time was the essence to all payment dues. Non payment or delay or default payments will attract interest @ of 24% per annum from the date of default and same was clearly laid down in the Construction Agreement clause 5. There was always delay by the complainant in payments
e. This Opposite party submits that the approval for the construction was obtained in a proper manner the Approval plan issued by the president nungambakkam panchayat of Kadambattur panchayat Union. As per the approval plan the construction was going on very smoothly but due to the delay in payment of the this complainant and non availability of building material in the Market for reasonable price and due to the undue delay on the part of the statutory authorities to give service connections like Electricity, CMWSSB, Sanctions and approvals and unforeseen conditions there was delay in completion of construction within 15 months from the date of construction Agreement.. After due explanation the complainant in colluding with other persons lodged a criminal complaint against these Opposite parties for cheating and criminal breach of Trust before the Inspector of Police, district crime branch ,Thiruvallur and the same was registered in crime no.2 of 2016, for such act these Opposite parties were arrested.. Finally with great difficulty they overcame the situation and the construction activity was totally stopped. More so ever the Honorable court order that all the layout should be compulsorily DTCP approval and issued a blanket ban order on construction in from lands on panchayt approved sites, due to which there was further delay in the construction and the district revenue authorities stopped the construction. Without knowing the reason properly the complainant had filed complaint against these opposite parties for non delivery of constructed house which is civil in nature.
f. In spite of knowing that the details of the approval and being satisfied only the complainant entered an agreement with this Opposite Parties. The complainant after going through all the legal follow-ups only has come forward to purchase the villa. This Opposite Parties submit that 80% of the construction was completed, only electricity connection, CMWSSB connections have to be done. Due to the court’s order and the complainant’s criminal complaint against this opposite Parties, the work is not able to get completed.
g. The 2nd to 4th opposite Parties submits that the 1st opposite party has disbursed the housing loan according to the phase manner as mentioned in the Annexure –B of the construction agreement. This opposite parties further ensures that they have not received the entire loan amount from the 1st Opposite Party on behalf of the complainant. If all the problems are sorted out the construction will be completed within 3 months.and will be handed over to the complainant.
h. The 2nd top 4th Opposite parties submits that there was no deficiency of service on the part of this Opposite parties moreover as per the Clause 9 of the construction agreement that the delay will not amount of deficiency of service on the part of this opposite parties and this Opposite parties are not bound to pay any damages. It is pertinent to state that as per the version of 1st opposite party that they have disbursed entire loan amount is not true, as per the agreement of sale this opposite parties have received only Rs.1,00,000/- from the complainant, therefore this opposite parties are not liable to pay a sum of Rs.3,65,000/- to the complainant. In spite of due from the Complainant this opposite party has completed the construction. Hence with the above submissions it prayed that the complaint may be dismissed with exemplary cost.
5. Regarding the Maintainability of the complaint
The 2nd to 4th Opposite Parties have raised the issue of Maintainability of this complaint ,as per the construction Agreement clause 47 any dispute arising in controversy of any kind whatsoever between the parties arising out of this agreement shall be referred finally by Arbitration as per the Arbitration and conciliation act 1996., for which this commission rely on Supreme Court decision of Emaar MGF Land Ltd,.vs Aftab Singh-I,(2015) CPJ5(SC) which laid down that an Arbitration Clause on the agreement does not bar the Jurisdiction of the Consumer Forum to entertain the Complaint. Hence the maintainability issue is answered accordingly.
6. The Complainant had filed their Proof affidavit along with 8 documents. The 1st opposite filed their Proof affidavit along with 5 documents. 2nd to 4th Opposite Parties filed only written version .No documents marked.
7. The Complaint has filed a complaint under section 12 of Consumer Protection Act 1986,i) directing the 1st Opposite Party to cancel the above referred loan agreement bearing form no.513455 and to return the EMI amount of Rs. 1,60,329 to the 1st opposite Party and Rs.3,65,000/- advance paid to the 2nd to 4th Opposite Party.ii) directing all the Opposite Parties to pay consolidated damages of Rs.10,00,000/-to the Complainant for deficiency of services and for the financial loss suffered ,mental stress and agony caused to the Complainant.
.
8. Points for consideration
1. Whether the 1st 2nd to 4th Opposite Parties has committed deficiency of service?
2. Whether the Complainant is entitled for the relief prayed in the Prayer?
8 .Point No.1
1. It is noted that the complainant had entered into an construction agreement with the 2nd to 4th Opposite parties for the Purchase of Villa for an consideration amount of Rs.12, 88,000/- on 01/09/2014., which is marked as exhibit A1, It is learnt that the complainant has prospectively entered into an sale agreement with the 2nd to 4th Opposite party dated 01/09/2014 for the purchase of land of 720 sq ft of vacant land for Rs.2, 88,000, it is pertinent to note that the SALE DEED is not executed due to non compliance. The 2nd to 4th Opposite Parties is Promoting Residential Villas under the Independent Houses system in the Name of M/s. RRP HOUSING Pvt Limited. The Construction agreement and Unregistered Sale Agreement are marked as Exhibits A1 & A2. The advance amount of Rs.1, 00,000/-was paid vide cheque no.138119 on 2/09/2014 and is admitted by the 2nd to 4th opposite parties in their version. The 2nd to 4th Opposite Parties have not filed the approved plan issued by the President Nungambakkam Panchayath of Kadambattur Panchayath Union.
2. Thereafter the Complainant had approached the 1st opposite party for availing housing loan and being satisfied applied for loan on submission of documents furnished by the 2nd opposite party, which is filed as Exhibit A3. The Loan amount sanctioned was Rs.11,00,000/- with repayment period was 108 months at a flexible rate of Interest of 10.95 %p.a.,and Kotak Life insurance Policy for Rs.34,103/-. With an equated monthly installment of Rs.16, 059/-. It is learnt that as per the disbursement of the loan to the 2nd and 4th Opposite Party was based on the Request letter in writing to be issued by the Complainant to the 1st opposite party then only the loan amount will be disbursed into the builders account. By analyzing the Exhibit B2 it is viewed that the 1st Opposite party has received a request letter from the complainant for disbursement of loan amount in favor of the 2nd Opposite party for an amount of Rs.5, 00,000/- but on viewing the exhibit it is cited that there is ambiguity in the Exhibit B2 which is not clear as to in which mode the amount was disbursed and the proof of successful transaction between the 1st opposite party and 2nd to 4th Opposite party has not been filed as evidence. Exhibit B3 filed by the 1st opposite party reveals that a demand letter was sent by the 2nd opposite party for the release of Rs.5, 00,000/- towards the completion of construction of a stage phase of the building till the roof level and requested to release the payment. To authenticate the payment transaction, details of collection of cheques has not been filed nor is transaction statement filed by the 1st opposite party. There is ambiguity in the 1st opposite party’s exhibits and versions, by mere filing the request letter and demand letter cannot be presumed that the 1st opposite Party has disbursed Rs.10, 000, 00/- to 2nd Opposite Party. The 1st opposite party in Exhibit B5 has stated the outstanding loan amount as on 31/08/2018 which cites that Rs. 11, 25,759 is due, it is apparent that the 1st opposite party has failed to deduct the EMI paid amount by the complainant from its loan account statement submitted as Exhibit B5.. Moreover as stated in the Proof Affidavit of 1st Opposite Party an amount of Rs. 34, 1103/- has been paid to the Kotak Life Insurance as premium coverage, but no proof is submitted. Mere submission in the versions cannot be taken as evidence, it should be substantiated by evidence which the 1st opposite party has failed to do so. The Exhibit A8 reveals that the Complainant has paid Rs. 3, 75,000/- to the 2nd to 4th Opposite party vide cheque no.s138119 dated 2/09/2014 and cheque no.835312 dated 27/10/2014, which is reflected in the exhibit A8 but the 2nd to 4th opposite parties have denied it in their version that they have not received any amount other than Rs.1, 00,000/- as advance which shows that they have not come to this commission with clean hands, and wrongly stated in their version. It is cited in Exhibit A8 that the Complainant has been paying monthly EMI to the 1st Opposite Party on various dates as reflected in the Account statement. Thus it is clear that the complainant has been paying the EMI promptly from 17/04/2015 till 9/02/2017.
3. The A6 exhibit of the Complainant reveals that the 2nd to 4th opposite parties have not handed over the villa to various purchasers in spite of receiving the amount which reveals that the 2nd to 4th opposite parties have not followed the principal of natural justice towards the purchasers. The Exhibit A7 cites that the Town and country planning authorities have issued a notification to stop the construction as the layout is not obtained DTCP approval from the authorities and there is violation in the construction warned Purchasers not to purchase the building. It is pertinent to note that the construction agreement and unregistered sale agreement made with the Complainant by the 2nd to 4th Opposite parties has become invalid. Therefore the villa booked by the Complainant could not be handed over to the Complainant. Hence it is clear from the Exhibits filed by the Complainant, that the 2nd to 4th Opposite parties have committed deficiency of Services in spite of receiving the amount of Rs.3, 65,000/- from the complainant. As far as 1st Opposite Party is concerned they have not proved as to how much amount was disbursed to the 2nd opposite party. And it is learnt from the version of the complainant that the 1st opposite party have been threatening the complainant for not paying the EMI. It is presumed that the complainant is left in the lurches they are neither able to get their villa nor able to get the amount back which is very hard to digest for a common middle class family. Hence this commission decides that there is deficiency of service by the 2nd to 4th Opposite Parties and the threatening act of the 1st opposite party has caused mental agony and stress. Therefore Point no.1 is answered.
8. Point No.2
1. The complainant had booked a villa from the 2nd to 4rth Opposite Parties and paid Rs. 3, 65,000/- as advance amount on various dates and entered a loan agreement from the 1st opposite party for 11, 00.000/- but it is not proved as to how much amount was disbursed to the 2nd Opposite party. It was found that the 2nd opposite party has not obtained the DTCP approval from the Land Authorities and have violated the construction rules and hence the construction work was stopped and a criminal complaint was lodged against the 2nd to 4th opposite parties. In respect of the 1st opposite party they have not furnished any account statement regarding the disbursement of the Loan amount in favor of 2nd to 4th opposite party, but the complainant has paid Monthly EMI amount from the date of booking of the villa till 09/02/2017- which is cited in the Exhibit A8 account statement of the Complainant bank. Therefore this commission comes to the conclusion that the Opposite parties have committed deficiency of service and caused mental agony, stress and financial loss to the complainant.
2. Hence this commission directs the 1st Opposite party to cancel the loan agreement bearing form no.513455 , refund the total EMI amount paid by the complainant from the date of payment of first EMI till the date of last EMI payment made as per the Account statement Exhibit A8 of the Complainant and direct the 2nd to 4th Opposite parties to Refund the advance amount received from the complainant for a sum of Rs.3, 65,000/- with interest of 12% from the date of filing of the complaint till the date of payment and direct the Opposite parties severally or jointly to pay a sum of Rs. 2,00,000/- for deficiency of service and Mental Agony.
In the result the, 1st Opposite Party is i) directed to cancel the Loan agreement bearing form no.513455 , and refund the total EMI amount paid by the complainant from the date of first payment of EMI till the date of last EMI payment made as per the Account statement marked as Exhibit A8 of the Complainant ii) direct the 2nd to 4th Opposite parties to Refund the advance amount received from the complainant for a sum of Rs.3, 65,000/- with interest of 12% from the date of filing of the complaint till the date of payment iii) direct the Opposite parties severally or jointly to pay a sum of Rs. 2,00,000/- for deficiency of service and Mental Agony, stress and financial loss caused to the complainant, within one month from the date of this order.
Corrected and Pronounced by us in the Open commission on this the 21st day of October 2022.
N. BALU V.LAVANYA V.RAMARAJ
MEMBER I MEMBER II PRESIDENT
Complainant’s Documents :
S.No. | Date | Description | Remarks |
Ex-A1 | 01/09.2014 | Construction agreement | Xerox |
ExA2 | 01/09/2014 | Sale Agreement | Xerox |
Ex-A3 |
| Loan Agreement | Xerox |
Ex-A4 | 20/09/2016 | Notice sent by the Complainant | Office Copy |
Ex-A5 |
| Acknowledgement card | Original |
Ex-A6 | 31/01/2016 | FIR | Xerox |
Ex-A7 | 05/11/2015 | Stop Work Notice | Xerox |
Ex-A8 | 31/05/2016 9/02/2017 | Account Details of the complainant Bank | Office copy |
1st Opposite Party’s Documents;-
S.no. | Date | Description | Remarks |
Ex-B1 |
| Photos of the Property under construction | Xerox |
Ex-B2 | 08/04/2015 | Letter of requisition for disbursement given by the complainant to the 1st Opposite Party for Rs.5,00,000/- | Xerox |
Ex-B3 | 17/06/2015 | Demand letter given by the 2nd Opposite party to the1st Opposite party for Rs5,00,000/- along with photo with roof level | Xerox |
Ex-B4 | 23/07/2015 | Letter of Requisition for disbursement given by the complainant to the 1st Opposite Party for Rs.5,00,000/- | Xerox
|
Ex-B5 | 10/09/2018 | Outstanding loan amount as on 31/08/2018 of the Complainant | Xerox |
2nd to 4th Opposite parties documents;:- NIL
Complainant’s witness:-
Mr. Chandrasekar
1st Opposite Witness:-
Mr. Sanjay Koppikar
2nd to 4th Opposite Parties witness:-
NIL
N. BALU V.LAVANYA V.RAMARAJ
MEMBER I MEMBER II PRESIDENT
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